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Video: Consent with Christian Michel

Christian Michel joined us at the Rose and Crown on August 7th to deal with an important issue. As advertised, the premise of the talk was that consent is considered to be the foundation of proper human interactions, but yet it is not frequenty discussed as a concept in it’s own right. How is consent given? Are there limits to what can be consented to?

The words that follow are Simon’s summary including ‘explanatory restatements’ in single quotes, except for “direct quotes” from Christian in double quotation marks:

Christian opened the talk with an extreme example in which, for reasons of their own, one man consented to be killed by another. The death was video taped and there was various evidence that the death was not only consented to but planned for in advance (with the deceased putting his affairs in order), and consent was maintained throughout the event itself. The German court eventually ruled that the case was an assisted suicide and therefore was illegal in German law. At one point however, the jury condemned the perpetrator without giving grounds and Christian did not dispute the propriety of that verdict. He accepted that death is not something that can be properly consented to.

Christian discussed a couple of dictionary definitions of Consent:

“a non-coerced agreement to what another proposes”

“to freely concede to or acquiesce in what is being done”

He also gives details of some broadly accepted legal principles, and eludidated various examples from medicine and everyday life:

Must be given prior to the action

Has to be specific

Must be informed

Freely given

Point 4 is a key one. Christian gives the example of a sweatshop where starving people have no good alternative options but to work there, however unpleasant that option is. The applicable test, for Christian is whether the sweatshop “created the circumstances” that caused the starving person to agree to the work.

By contrast a mugger, armed with a weapon, offers his victim only one choice (to restate it:) ‘your money or your life’ which is logically similar to (restated) ‘your labour or your life’ (the choice a sweatshop worker might have) but in this case the robber is clearly the person that created the circumstances that lead to the contrained choices of the victim. In the sweatshop example the proprietor is offering a positive choice, and there may be other alternatives (such as a more uncertain rural lifestyle).

Christian states his assumption that denying the autonomy of a person is an undesireable action, that tends only to harm the person, but went on to deal with the case of persons who a temporarily incapacitated. The usual procedure he says, is that we proceed to do the things that the incapacited person would have wanted. This is prone to error, for example, when people have unusual and uncommon beliefs. In contrast in the special case of children we tend instead to decide something more about means by which the child might acheive a happy life becuase they are the ends in themselves. Another view, he said, is that we view children as – for instance – the future of a country, that is, as the means to the acheivement of the common good, which is highly problematic.

Christian then goes onto to give several examples of where the choice we make, be it for a lack of moral courage, moral decency or will power, is different from the choice we believe we ought to make. This set’s him up nicely to consider an important political question:

It is one thing to understand why a minority rebel’s, but why is it that the majority do not rebel?

Christian speculates that there may be a degree of brainwashing,or some natual perogative that leads us to obey leaders. Christian asserts that schools are the mechanism by which many regimes acheive the continued acceptence of their own rule.

In a representative democracy however, it is not even clear what it is that a voter has consented to, regardless of their reasons. For instance, we do not know the bills a representative will vote on, how he will vote and or what will happen and so there is no valid consent in such a process.

Christian repeats that the 4 legal principles he gave will tell us whether someone has consented, and that due to the various problems with democratic decision making, only a libertarian society based on individual and specific consent is a proper model for a humane social structure.

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3 Comments

Very interesting talk. I was interested to hear M. Michel say that when we are discussing “What is X?” a good [reliable, authoritative, scholarly] dictionary is always a good place to start; in my judgment he is absolutely right, but lots of people seem rather to seek divination, or else the means to mash their own idea of X into other people’s heads.

We do seem to have a great deal of trouble with the fact that sometimes other people have purposely created our misfortunes real or perceived, while at other times we suffer as a result of an Act of God (so to speak), or of nature; “mugged by reality,” as has been said of former libruls [sic] upon discovering that theirs is not the Kingdom of Heaven.

It would be so much more convenient if we could always know with certainty whether our suffering is laid upon us by others (out to grab a buck, no doubt, or to exercise their power-lust, or out of their confusion of themselves with the Saviour of the World) — or whether it’s just good old Reality having some fun at our expense.

Because as long as this confusion exists, people are mostly going to find it very vexatious trying to decide such questions as “what does ‘consent’ mean?” As M. Michel’s example of the factory illustrates. I was delighted to hear him explain that the guy who now has at least a sweatshop job is assumed to consent since the factory didn’t cause his sorry plight in the first place. In other words, if we say he was “forced” to take the job, we must understand that it was the force of circumstance, not some illegitimate exercise of coercive force by others. As such, he certainly did have a choice to make, a real choice; and being a sensible fellow, presumably he decided that a biscuit on the table would be better for his family and himself than the nothing he would have if he turned down the job.

It is only by clearing up issues such as this that we can overcome Marxist and other theories of “exploitation.”

What about the issue of political consent? I certainly do NOT consent to having the circumstances of my life dictated by all manner of thieves, busybodies whether stupid or on a power trip (Dolores Umbrage indeed!), and people who think they have the right to decide who lives and who dies (Obamacare, John Holder, Dr. Zeke Emanuel). Yet all of this is visited upon us by the Federal (and State, and local) governments.

I do not consent; but so far I put up with it. I acquiesce, under duress.

I want to suggest quite an interesting book called Restoring the Lost Constitution: The Presumption of Liberty, by Randy Barnett, who is the Carmack-Waterhouse Professor of Legal Theory at Georgetown U.’s Law School. The first section of this book deals specifically with the issue of consent, and although I wasn’t entirely convinced by it I did find it fascinating, as is the rest of the book.

Prof. Barnett cut his lawyering teeth as a prosecutor with the Cook County (Chicago, Ill.) District Attorney’s office, but then moved on into the professoriate. Among other things, he argued before the Supreme Court in the medical marijuana case Raich v. Gonzales, in which unfortunately the Federales prevailed.

Anyway, he is one of the two people probably considered the pre-eminent libertarian lawyers and legal scholars in the U.S. (the other being Prof. Richard A. Epstein). He’s an anarcho-capitalist, and favors a polycentric legal order.

Also, Simon, thank you as always for the excellent write-up. By the way, I have just subscribed to a YT channel for the first time, in the hope that Q&A might be there. Please go ahead when you have time — I’m good for it, I promise! 😉